Citation Nr: 1110545
Decision Date: 03/16/11 Archive Date: 03/30/11
DOCKET NO. 08-26 948 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma
THE ISSUE
Entitlement to an increased rating for bilateral hearing loss, currently evaluated as 50 percent disabling.
REPRESENTATION
Appellant represented by: Virginia A. Girard-Brady, Esq.
ATTORNEY FOR THE BOARD
E. McGuire, Associate Counsel
INTRODUCTION
The Veteran served on active duty from September 1965 to September 1968.
This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which continued the previously assigned 50 percent rating for service-connected bilateral hearing loss.
The Board previously denied this claim in a decision dated in April 2010. Pursuant to a Joint Motion to Remand (Joint Motion), the Court of Appeals for Veterans Claims (Court) remanded the Board's decision in an Order dated in December 2010. The Court remanded the case to the Board for readjudication consistent with the Joint Motion. The case has been returned to the Board for readjudication.
The Board notes that in a January 2011VA Form 21-22a, the Veteran appointed Virginia A. Girard-Brady, Esq. as his representative.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
The Court granted the parties' Joint Motion because the Board erred in its duty to assist the Veteran by relying upon October and December 2007 audiological evaluations in denying an increased rating for bilateral hearing loss. The parties believe that the record included evidence indicating a potential material change in the Veteran's disability since the completion of those evaluations. Specifically, the parties agreed that a lay statement submitted by the Veteran in September 2008 indicated that his hearing loss had worsened since the last examination. The Veteran reported that his hearing aids did not help much and that he had trouble hearing the television. He reported that he was unable to use the telephone due to his hearing loss. He also complained of dizzy spells and headaches that had become more frequent.
Pursuant to the Joint Motion, the Board finds that additional development is required before further adjudication. Specifically, a VA examination should be obtained to determine the current severity of the Veteran's bilateral hearing loss.
Accordingly, the case is REMANDED for the following action:
1. The Veteran should be afforded an appropriate medical examination to determine the current degree of severity his bilateral hearing loss. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished.
Please send the claims folder to the examiner for review in conjunction with the examination.
2. Thereafter, the Veteran's claim of entitlement to an increased rating for bilateral hearing loss readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
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John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).